U.S. Fourth Circuit: June 2010 Archives
U.S. Fourth Circuit - The FindLaw 4th Circuit Court of Appeals Opinion Summaries Blog

June 2010 Archives

Suisa v. Holder, No. 08-2343, concerned an Israeli couple's petition for review of a decision by the BIA pretermitting consideration of their applications for adjustment of immigration status under section 245(i) of the INA.  In denying the petition for review, the court held that the Attorney General, confronted with the question of whether section 1255(i) applies to grandfather the substituted beneficiaries of labor certifications, reasonably determined that only beneficiaries substituted before April 30, 2001, the date selected by Congress, may be eligible to apply for adjustment of status under section 1255(i), and therefore,  8 C.F.R. section 1245.10(j) is a valid exercise of the Attorney General's rulemaking authority.

Williams v. Metro. Life Ins. Co., No. 09-1025, concerned a challenge to the judgment of the district court in favor of the plaintiff, in plaintiff's ERISA suit against MetLife for terminating her long-term disability benefits.  In affirming the judgment, the court held that, although the district court applied a legal standard later abrogated in Champion, it did not err in concluding that MetLife's decision to terminate plaintiff's long-term disability benefits for the applicable period was an abuse of discretion, as MetLife's rationale in terminating plaintiff's benefits was not reasoned and principled, and was not supported by substantial evidence.  The court also held that the plaintiff was eligible for an award of attorneys' fees under the Hardt standard, and the district court's award of attorneys' fees was not an abuse of discretion.

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Conviction for Drug Offenses Upheld, but Sentence Vacated

In US v. Young, No. 08-4117, the Fourth Circuit faced a challenge to a conviction of defendant for drug related offenses and a within-guidelines sentence of 136 months' imprisonment.  In affirming the conviction, the court held that the district court did not err in concluding that the officers complied with their knock-and-rule announcement obligations.  The court also held that there is no basis to suppress the evidence found in defendant's house, and that the evidence was sufficent to support defendant's conviction for conspiring to distribute cocaine.

However, the court vacated and remanded defendant's sentencing for resentencing as the district court erred by viewing the jury's drug-quantity determination as precluding the court from finding a higher quantity for sentencing purposes, and this error was not harmless.

As stated in the decision: In order to select a sentence within a jury-verdict-authorized maximum sentence, the district court must make relevant factual findings based on the court's view of the preponderance of the evidence.  When making those factual findings, the district court may consider acquitted conduct, so long as the court determines that the conduct was established by a preponderance of the evidence.  This judicial fact-finding was a critical part of the sentencing process before Booker, and it remains a critical part of the process after Booker."

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US v. Jackson, No. 09-4753, concerned a challenge to the district court's denial of defendant's motion to dismiss his indictment for making false statements on "a matter within the jurisdiction of the executive, legislative, or judicial branch of the Government," in violation of 18 U.S.C. section 1001.

As the court stated: "While we think that the executive branch's authority to safeguard federal funds is a sufficient jurisdictional nexus on its own...even more direct controls that the executive branch exercised over Jackson.  Specifically, it had the power to revoke Jackson's security clearance and his access to his NSA job site and ultimately to terminate its contract with CSC.  Indeed, Jackson was only able to work on this project for NG because he was authorized to do so by NSA Security."

Thus, in affirming the conviction, the court held that defendant's false statements on his time-sheets, which were transmitted to the prime contractor, and from the prime contractor to the National Security Agency (NSA), and ultimately paid by the NSA, are matters within the jurisdiction of the executive branch under section 1001. 

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In Air Line Pilots Ass'n v. US Airways Group, No. 09-2083, the Fourth Circut faced a challenge to the district court's dismissal of the complaint in an airline pilots union's suit to establish and arbitrate before a multi-employer, multi-union board of adjustment.

Section 204 of the Railway Labor Act (RLA) states: "The disputes between an employee or group of employees and a carrier or carriers by air growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions...may be referred by petition of the parties or by either party to an appropriate adjustment board, as hereinafter provided...It shall be the duty of every carrier and of its employees...to establish a board of adjustment...Such boards of adjustment may be established by agreement..."

Thus, in affirming the dismissal, the court held that plaintiff's claim is foreclosed by the plain language of section 204 of the RLA, which permits but does not require such a board adjustment, and plaintiff's alternative state law claim is meritless.   

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Ramirez v. Holder, No. 09-1629, concerned Mexican citizens' petition for review of a decision dismissing their appeal of an IJ's denial of the husband's application for adjustment of status, claiming that the husband was entitled to adjustment of status under section 1255(i) based on the approved labor certification and Form I-140 petition.

In denying the petition, the court held that under the Chevron analysis, the BIA's interpretation of sections 1182(a)(9)(C)(i)(I) and 1255(i), in holding that the husband is inadmissible under section 1182(a)(9)(C)(i)(I) because he entered the U.S. unlawfully after accruing more than a year of prior unlawful presence is foreclosed from adjusting his status under section 1255(i) on the basis of approved immigrant visa application, must be given deference. 

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In Equal Employment Opportunity Comm'n v. Fairbrook Med. Clinic, P.A., No. 09-1610, the Fourth Circuit faced a challenge to the  district court's judgment in favor of the defendant-employer in an Equal Employment Opportunity Commission's (EEOC) suit on behalf of a plaintiff-doctor against her former employer for creating a hostile work environment because of plaintiff's sex.

As the court wrote: "In this case, many of Kessel's comments ventured into highly personal territory.  While Waechter was pregnant, he frequently commented about the size of her breasts.  After she gave birth, he asked to see her breasts and to pump them, stated that he wanted to lick up her breast milk, inquired about the status of her libido, and opined that she was probably a "wild thing" in bed."

Thus, in reversing the district court's judgment, the court held that the EEOC has presented an issue of triable fact as what happened was not merely general crudity but a series of graphic remarks of a highly personal nature directed at a female employee by the sole owner of an establishment.   

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Court Also Addresses Case Dealing with Evasion of Reporting Requirements

In US v. Rendon, No. 09-4687, the Fourth Circuit faced a challenge to a conviction of a private in the U.S. Army in a civilian court for child pornography, claiming that the search of defendant's MP3 player by the military while he was a private in the U.S. Army was unconstitutional.  The court affirmed the district court's denial of motion to suppress as evidence the fruits of the search conducted by the military, because defendant's MP3 player was inspected pursuant to a valid military inspection, and thus, contraband discovered during the course of that inspection could be seized and turned over to civilian authorities.   

US v. Peterson, No. 09-4166, concerned a conviction of defendant for structuring transactions to evade reporting requirements set forth in 31 U.S.C. section 5313(a).  In affirming the district court's imposition of a two-level enhancement pursuant to section 2S1.3(b)(2) of the sentencing guidelines to defendant's sentence, the court held that the district court did not err in determining that defendant's structuring offense was committed as part of a pattern of unlawful activity involving more than $100,000 in a twelve-month period, and as a result, the safe harbor of section 2S1.3(b) did not apply.   

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US v. Graham, No. 09-6013, concerned a challenge to the district court's denial of defendant's motion for a certificate of innocence after his conviction for embezzlement of his employer was overturned.  In affirming the denial, the court held that defendant has not demonstrated that the court abused its discretion in concluding that he failed to meet his burden under the second clause of section 2513(a)(2), that he did not, by misconduct or neglect, cause or bring about his own prosecution. 

Norfolk S. Ry. Co. v. City of Alexandria, No. 09-1566, concerned an action for a declaratory judgment against a city, arising from an ordinance to regulate ethanol transloading at plaintiff's facility.  In affirming the judgment in part, the court held that the ordinance, as applied to plaintiff through the permit, is preempted by the Interstate Commerce Commission Termination Act (ICCTA).  Further, the district court's judgment with respect to the Hazardous Materials Transportation Act (HMTA) and Federal Rail Safety Act (FRSA) is vacate, and because the disposition of the ICCTA claim renders other preemption claims moot, the HMTA claim is dismissed.     

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In US v. Novak, No. 08-5254, the court of appeals faced an appeal from a conviction under 18 U.S.C. section 228(a)(3) for willfully failing to pay child support.

The court of appeals rejected two challenges to the district court's jury instructions on venue, finding that: 1) the district court did not err when it defined "resided" as "the act or fact of living in a given place permanently or for an extended period of time," and the evidence was sufficient, for purposes of venue, to establish that defendant resided in the Eastern District of Virginia during the time period alleged in the indictment; and 2) even assuming the district court's instruction was erroneous, defendant could not show any harm.   

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In US v. Joshua, No. 10-6281, the court faced the issue of whether the government could civilly commit an individual who had been convicted and sentenced via military court-martial, then certified by the attorney general as "sexually dangerous" prior to his release.

The court below had found that the government could not do so under the statutory scheme at issue, and the circuit court upheld dismissal of the government's petition for civil commitment of respondent under 18 U.S.C. section 4248. Respondent, who had been convicted and sentenced via military court-martial, but housed within a Bureau of Prisons (BOP) facility, was nevertheless not "in the custody" of the BOP under section 4248 because the BOP did not have legal custody over him. Physical custody of respondent did not suffice for purposes of the statute.

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AOL Not an Agent of Government for Fourth Amendment Purposes

Plus Other Criminal Matters

In US v. Garcia-Ochoa, No. 09-4620, the Fourth Circuit faced a challenge to a conviction of defendant for falsely declaring that he was a "citizen or national of the United States" or a "lawful permanent resident" on I-9 Employment Eligibility Verification Forms.  In affirming the conviction, the court held that the district court did not err in finding materiality as the defendant's misstatements were capable of influencing agency action in a number of ways and by a number of agencies, including the Immigration and Custom Enforcement's enforcement of immigration laws.  

US v. Richardson, No. 09-4072, concerned a  challenge to the district court's denial of  a defendant's motion to suppress and its quashing of his subpoena duces tecum in a prosecution of defendant for child pornography related crimes.  In affirming the conviction, the court held that the statutory provision pursuant to which AOL reported defendant's activities did not effectively convert AOL into an agent of the government for Fourth Amendment purposes.  The court also held that the district court did not abuse its discretion in granting AOL's motion to quash as his subpoena lacks specificity.  And lastly, the totality of the evidence provided the issuing magistrate with a substantial basis for concluding that there was a fair probability that the computer defendant used to engage in unlawful activities was kept in his current residence.  

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In US v. Knight, No. 09-4282, the Fourth Circuit faced a challenge to the district court's imposition of a 60 month sentence upon a defendant for a felonious possession conviction.  In affirming the sentence, the court held that the district court did not err in relying on defendant's arson conviction to increase her base offense level to 20.  The court also held that the district court did not err in concluding that, in light of the obstruction-of-justice enhancement she received for absconding, defendant was not entitled to an acceptance of responsibility reduction.  Lastly, the court held that although the district court erred by applying the four-level enhancement for obliterated serial numbers found in the 2007 Guidelines manual, rather than the two-level enhancement contained in the 2005 manual, defendant has not shown that she was prejudiced by that error. 

Lewis v. Wheeler, No. 09-4, concerned a challenge to the district court's denial of defendant's petition for habeas relief and an order granting a certificate of appealability in a conviction for capital murder for hire and related crimes for the murders of her husband and stepson.  In affirming the judgment, the court held that the state court's adjudication of defendant's ineffective assistance of counsel claims is neither contrary to nor an unreasonable application of the applicable precedents.  Furthermore, the court held that defendant has failed to demonstrate that counsel's failure to preserve and advise her of a possible Apprendi/Ring challenge to the constitutionality of Va. Code Ann. section 19.2-257 rises to the level of constitutionally deficient representation and has also failed to show that she was prejudiced as a result of counsel's alleged deficiencies. 

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In US v. White, No. 09-4114, the Fourth Circuit faced a challenge to the district court's conviction of defendant for being in possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, claiming that his predicate conviction under Virginia law cannot be considered a "misdemeanor crime of domestic violence" as defined in 18 U.S.C. sectoin 921(a)(33)(A).  In concluding that "physical force" is not an element of assault and battery under the well-established law of Virginia, the court reversed and vacated the sentence as defendant's predicate conviction under Virginia law cannot be considered a misdemeanor crime of domestic violence as defined in 18 U.S.C. section 921(a)(33)(A).  

In US v. Ashley, No. 08-4015, the court faced a challenge to a conviction of defendant on federal charges related to his efforts to have a government informant and witness murdered, claiming  insufficient evidence to support a conviction for conspiring to kill an informant in retaliation for providing information to law enforcement officer and constructive amendment of a firearm offense. In affirming the conviction, the court rejected defendant's sufficiency of evidence claim and held that the evidence satisfied constitutional requirements.  The court also rejected defendant's constructive amendment claim and held that a district court does not constructively amend an indictment by giving a Pinkerton instruction when Pinkerton liability has not been charged by the grand jury.   

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